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State v. Welch

Court of Appeals of Oregon

November 29, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DONALD ARTHUR WELCH, Defendant-Appellant.

          Submitted August 23, 2016.

         Deschutes County Circuit Court 14AB0137C1 Stephen P. Forte, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Nani Apo, Assistant Attorney General, filed the brief for respondent.

          Before DeHoog, Presiding Judge, and Shorr, Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a punitive contempt judgment based on a finding that he violated the terms of a restraining order. He assigns error to the trial court denying his motion for judgment of acquittal and subsequently finding him in contempt. The court ordered defendant to abide by the terms of the restraining order but imposed no sanctions. Defendant argues that his appeal is not moot, because, first, the judgment of contempt alone carries significant social stigma, and, second, the judgment could have adverse legal consequences. Held: Defendant's appeal is moot. First, defendant did not identify how a contempt judgment that imposes no sanctions and only mandates compliance with a preexisting court order carries sufficient social stigma to prevent an appeal from being moot. Second, the mere possibility that the contempt judgment might in the future have adverse legal consequences for defendant is likewise insufficient to prevent the appeal from being moot.

         Appeal dismissed.

         [289 Or.App. 119] SHORR, J.

         Defendant appeals a judgment of punitive contempt based on a finding that he violated the terms of a restraining order prohibiting him from, among other things, "knowingly be[ing] or stay[ing] within 500 feet" of his ex-girlfriend. We conclude that defendant's appeal is moot. Therefore, we dismiss.

         Defendant was charged with contempt for failing to promptly comply with the terms of the restraining order against him. During the contempt proceeding, defendant moved for a judgment of acquittal, which the trial court denied. The court later found defendant in contempt and entered a judgment against him. Although it was authorized to impose fines, community service, or jail time as a punitive sanction under ORS 33.105, the court chose not to impose any sanctions. Instead, after holding defendant in contempt, the court explained to defendant that "the court's not going to impose any consequence as a result of this." The court then told defendant that "the restraining order continues in place. * * * You need to comply with that restraining order." The only condition listed on the General Judgment of Contempt entered by the court reflected that statement, in that it required defendant only to "[a]bide by any active restraining order."

         On appeal, defendant argues that the trial court erred when it denied his motion for judgment of acquittal and subsequently entered a punitive contempt judgment against him. The state argues that defendant's appeal is moot. Specifically, the state asserts that defendant did not suffer any adverse collateral consequences from the judgment of contempt because the court did not impose any sanctions on defendant; rather, the court only ordered defendant to comply with the existing restraining order, which he had a preexisting obligation to do. Defendant argues that an appeal from a judgment of punitive contempt is not moot, regardless of whether the court imposes sanctions on the defendant, because "punitive contempt proceedings carry significant social stigma." In addition, defendant argues that his appeal is not moot because the contempt judgment could have adverse legal consequences for him; specifically, [289 Or.App. 120] if he were found in contempt for violating the restraining order a second time, he could simultaneously be held responsible for violating the contempt judgment that ordered him to comply with the restraining order. The state responds that that "mere possibility" is insufficient to prevent defendant's appeal from being moot.

         A case is moot if "resolving the merits of a claim will have no practical effect on the rights of the parties." State v. Langford, 260 Or.App. 61, 66, 317 P.3d 905 (2013). "Even if the main issue in controversy has been resolved, collateral consequences may prevent the controversy from being moot under some circumstances." State v. Hauskins, 251 Or.App. 34, 36, 281 P.3d 669 (2012) (emphasis in original). For example, when a defendant challenges a punitive sanction for contempt, the sanction having been served does not necessarily render the appeal moot because, in at least some instances, "a punitive contempt sanction carries a collateral consequence of a stigma analogous to a criminal conviction." Langford, 260 Or.App. at 67 (internal quotation marks omitted).

         We have addressed mootness in the punitive contempt context a number of times in the past. In State ex rel State of Oregon v. Hawash, 230 Or.App. 427, 215 P.3d 124 (2009), we held that an appeal from a judgment of contempt for failure to pay court-ordered child support was moot. There, as part of the contempt judgment, the trial court imposed bench probation as a sanction. That probation had expired by the time the appeal reached us. We explained that "[a]ppellant has not identified any collateral consequences that flow from the judgment of contempt, and we are aware of none." 230 Or.App. at 428.

         In a subsequent case, Hauskins, we reached a different conclusion than in Hawash. In Hauskins, the defendant was sentenced to confinement in the county jail for 180 days as a punitive sanction for violating his probation. The state argued that the appeal was moot because the defendant had been released from confinement. We concluded that, "although punitive contempt is not a 'crime, ' a judgment imposing a punitive sanction of confinement for contempt * * * is sufficiently analogous to a criminal conviction [289 Or.App. 121] that it carries a collateral consequence of a stigma that is analogous to a criminal conviction." 251 Or.App. at 38-39. Due to that stigma, when a ...


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